Opinion
DOCKET NO. A-5547-13T3
02-11-2015
STATE OF NEW JERSEY, Plaintiff-Appellant, v. SINANN YANN, Defendant-Respondent.
John L. Molinelli, Bergen County Prosecutor, attorney for appellant (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief). Peter Kapitonov (Musa-Obregon & Associates) attorney for appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 13-10-1357. John L. Molinelli, Bergen County Prosecutor, attorney for appellant (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief). Peter Kapitonov (Musa-Obregon & Associates) attorney for appellant. PER CURIAM
On leave granted, Rule 2:5-6(a), the State appeals the trial court's June 11, 2014 order suppressing heroin found in defendant Sinann Yann's automobile. On June 17, 2014, Judge Eugene Austin also denied the State's application for reconsideration of his earlier decision. We now affirm.
I
Fort Lee Police Detective Cory Horton was the State's sole witness at the evidentiary hearing conducted on defendant's motion to suppress. He testified that on May 9, 2013, at approximately 7:30 p.m., while on plain clothes patrol, he noticed defendant walking through a McDonald's parking lot. That McDonald's lot, located next to a supermarket parking lot, was in a high-crime area. Defendant entered a 2007 gray Dodge Charger with tinted windows. Horton subsequently noticed the Dodge proceed to the southeast corner of the supermarket lot. The car backed into a parking space opposite a Porsche Cayenne. Defendant, after approximately three minutes, left the Dodge and entered the Porsche. Horton radioed his partner, Detective Timothy Cullen, to provide backup. He followed defendant, while Cullen followed the gray Dodge.
While attempting to enter I-95 South, defendant abruptly crossed a solid line with zebra stripes without signaling, cutting off a red sedan. Horton activated his siren. He followed defendant on I-95 South for approximately half a mile, onto a local road, where defendant stopped at the first gas station. Horton testified that defendant did not stop at two "zebra" areas, acknowledging that the first such area was the one defendant crossed, and that the second divided I-95 from Route 46, had traffic passing on both sides, and was not a "safe" area to pull over.
At the Sunoco station, Horton approached defendant's vehicle from the driver's side. As he approached, he observed defendant looking at him through the driver's side mirror and saw defendant's head drop out of view. Horton alleged he twice told defendant to stop what he was doing and, while still behind the vehicle, ordered him to step outside. He stood defendant behind the vehicle and asked him why he was reaching under the seat, which defendant denied. When asked a second time, defendant said he was looking for his license. Horton said defendant was nervous, although a pat-down search produced no weapons or contraband. Horton waited for backup.
Once backup arrived, Horton opened the driver's side door and searched underneath the driver's seat. In the process, Horton observed a plastic package containing contraband underneath the driver's seat. Horton unsuccessfully attempted to remove the package, which was wedged beneath the seat. He then placed defendant under arrest. When Horton returned to the vehicle, he raised the seat and removed the package. It contained 800 glassine envelopes of heroin. As a result, defendant was indicted for third-degree possession with intent to distribute heroin within 1000 feet of school property, N.J.S.A. 2C:35-7; second-degree possession of more than a half ounce but less than five ounces of heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(2); and third-degree possession of heroin, N.J.S.A. 2C:35-10.
Following the hearing and argument on the suppression issues, Judge Austin rendered his decision from the bench. After reviewing the testimony, essentially as we have summarized it, he first found that Horton's stop of defendant for a motor vehicle infraction was proper. He further found that given the circumstances to that point, Horton had the right to pat defendant down for his own safety.
The judge found that although the pat-down of defendant's person may have been appropriate because Horton saw defendant's head duck down under the headrest, that did not warrant the officer searching underneath the driver's seat. The State did not take the position that the drugs were in plain view. Defendant signed consent to search forms for the vehicle after the drugs were found, which did not have any legal effect on the initial search. As the judge stated, there was no basis under any precedent that justified the search of the vehicle once defendant was patted down and nothing was found on his person.
On reconsideration, the judge reiterated that, based on the testimony he heard, the police officer had no objective basis for his belief that defendant was potentially dangerous, or that a search of the vehicle was necessary for the officer's safety. Defendant's brief disappearance from view and nervousness were simply not enough to suggest criminal activity.
On appeal, the State raises the following point for our consideration:
POINT I
BECAUSE OF DEFENDANT'S ACTIONS BEFORE THE MOTOR VEHICLE STOP AND IN THE VEHICLE AFTER THE STOP, DETECTIVE HORTON PROPERLY CONDUCTED A PROTECTIVE FRISK FOR WEAPONS OF DEFENDANT AND OF THE VEHICLE.
II
In support of its appeal, the State cites to State v. Gamble, 218 N.J. 412 (2014). We agree that the decision is controlling, but disagree that it mandates reversal of the trial judge's suppression order. In Gamble, the facts significantly differed from those in this case. When added together, the facts in Gamble meant the officers' limited protective sweep of a vehicle for their own protection was lawful. Id. at 431-32.
In Gamble, police responded to separate 9-1-1 late-night calls. One caller reported hearing shots, while the second reported observing a person in the same area seated in a van with a gun in his lap. Id. at 418. The location was in a high-crime area. Ibid. The responding officers quickly found the vehicle, and upon their arrival, observed frantic movements by the occupants. Ibid. When ordered to exit, the driver refused and had to be forcibly removed. Ibid. He was frisked and no weapon was found on his person, however, when the officer looked inside the van he saw the handle of a gun protruding from the center console. Ibid. Meanwhile, the driver attempted to flee. Ibid.
The Supreme Court stated that the totality of the circumstances:
the 9-1-1 calls, the late hour, the location of the van, the frantic movements of the occupants, and the hesitancy of the driver to leave the van—permitted the responding police officers to form a reasonable suspicion that either one or both of the occupants of the van were armed or that a weapon would be found in the vehicle.Since no weapons were found when the occupants were frisked, the officers' "protective sweep of the passenger compartment of the van" was justified. Ibid.
[Id. at 419.]
The facts in Gamble significantly differ from those in this case. The only reason this defendant came to the attention of the officer was because he observed him sitting in a parked vehicle that had tinted windows, being driven to an adjoining parking lot, getting into his own vehicle, and driving away. That is a far cry from the circumstances in Gamble, where the officers' attention was drawn to the defendant because of 9-1-1 reports of shots being fired and the presence of a handgun in the vehicle. In contrast, this defendant's actions could have been entirely innocent. Mere presence in a high-crime area does not strip defendant of his constitutional right to be free from unreasonable searches. See State v. Gibson, 218 N.J. 277, 297 (2014) ("The constitutional right to be free from arbitrary arrest is not suspended in high-crime neighborhoods where ordinary citizens live and walk at all hours of the day and night.").
We uphold the grant or denial of a motion to suppress when the findings are supported by "sufficient credible evidence in the record." Gamble, supra, 218 N.J. at 424 (citing State v. Elders, 192 N.J. 224, 243 (2007)). We give deference to credibility findings. State v. Locurto, 157 N.J. 463, 474 (1999). We see no reason in this case to part company with the trial judge in his findings of fact and assessment of the State's witness's credibility.
A warrantless search is presumptively invalid "unless it falls within one of the recognized exceptions to the warrant requirement." State v. Cooke, 163 N.J. 657, 664 (2000). In this case, there was no basis for the limited protective sweep authorized by Gamble. The "confluence of factors" in that case is far removed from this scenario. Gamble, supra, 218 N.J. at 433.
There were no specific and articulable facts which would have established the basis for an exception to the warrant requirement. Clearly, the plain view exception does not apply, as the drugs had to be forcibly removed from where they had been jammed beneath the driver's seat. See State v. Johnson, 171 N.J. 192 (2002) (the plain view doctrine requires police to be lawfully in the viewing area, discover evidence inadvertently, and immediately recognize the incriminating nature of the items seized). Although we agree with the State's proposition that the basis for a protective search may be established after a permissible investigatory stop, here, nothing occurred subsequent to the stop which warranted a protective search for weapons. See State v. Lund, 119 N.J. 35 (1990).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION